When I spoke at the annual conference last month my intention was to leave no one in any doubt of the Law Society’s commitment to legal aid.
When the legal aid system was established in 1949 the government intended it to help the poor to defend their fundamental rights while giving lawyers fair pay for their work. These were important principles then and they remain important now.
Our priority must be to create a legal aid system fit for the 21st century. We need to make sure that the provision of legal aid is functioning effectively as a front-line public service, standing alongside health and education in the fight against social exclusion. To do this effectively, the government must invest more money in legal aid.
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Not that old chestnut, some might say. But in my view, it is a reality that simply cannot be ignored. There is only so much that can be done to improve a failing system within a limited budget. The Law Society will continue to press for increased funding for legal aid despite any misplaced criticism levied at us for not being realistic or for sending out a jaded message.
The Law Society is facing up to the reality of the situation – legal aid is now at a critical stage. Let’s look at the facts. The legal aid budget for 2003/2004 was £2 billion – a tiny fraction of the current spending on education and the National Health Service, which together cost more than £100 billion. Within that budget, which is effectively cash-limited, civil legal aid is not ring-fenced from the increasingly demand-led criminal legal aid budget. Civil legal aid spending has decreased by £50 million in four years. It is nonsensical for demand-led criminal legal aid – essential to underpin a fair criminal justice process – to be managed as part of the same fixed pot as civil legal aid, which serves two quite different purposes: promoting equal access to justice and combating social exclusion.
If the government allows this scenario to persist we will be left with a situation where, for millions of people, the ability to enforce and defend their legal rights will depend more on the depth of their pockets than on the merits of their cases. We simply cannot allow that to happen.
I recognise that the Legal Services Commission (LSC) faces an enormous challenge in attempting to provide an effective community legal service within such a tight budget. I also appreciate that the LSC has to make difficult choices in the face of competing demands. Commission chief executive Clare Dodgson and her colleagues at the LSC deserve credit for taking the argument about funding to the Treasury – we need that level of support from those who manage the available budget.
One way of protecting civil legal aid is to treat criminal legal as a separate heading – and regarded as annually managed expenditure – within the overall legal aid budget. If this happened, regular overspends on criminal legal aid would not automatically be met by further squeezes on civil spending.
The reality is, unless we address the legal aid crisis now, the principle on which the modern legal aid system was built will not be realised. The fundamental review of legal aid, announced in May of this year, presents us with an opportunity to work collaboratively with the Department for Constitutional Affairs, the LSC and with other key stakeholders to deliver real solutions.
The possibilities are immense. Telephone legal advice, for instance, has enormous potential as an important tool in the battle against social exclusion. People in more remote communities and those without Internet access could get expert help much quicker and more easily. I believe this, along with other initiatives such as the development of advice centres, provides us with encouraging options for the future delivery of legal aid.
There is also the possibility of solicitors moving away from traditional models of practice – perhaps forming collaborative arrangements with other professionals such as local GPs – to enable a more holistic service to be offered.
And many firms doing legal aid work at present might see opportunities in the legal disciplinary practice model, which is being discussed as part of the Clementi review. For many firms struggling under the current scheme, external investment and expertise might bring the kind of financial stability that enables them to continue their commitment to legal aid.
But the government and the LSC need to recognise that traditional providers of legal aid have their place. Private practice firms need to have the flexibility to deliver legal aid in a less bureaucratic and more benign environment. Approved LSC firms should be trusted to deliver legal aid services as their business models suit – freed from suffocating bureaucracy, albeit with appropriate and robust accountability. Outcomes should be measured, but there should be a greater concentration on substance rather than form.
There are things that can be done to bring real improvements to access to justice for all. Ring-fencing of the civil legal aid budget is an absolute essential and the Law Society will continue to press the government to make additional investment available. But at the same time, we must all remain open and responsive to new ideas and approaches to the delivery of legal aid so that we give it a fighting chance.
Edward Nally is the Law Society President
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